Australia: Closer to home: Resources projects in Queensland face a reduction in fly-in/fly-out workers

Fly-in/fly-out (FIFO) workers have long been an integral aspect of the operational model of large resources projects. However, all that could be changing with the introduction of the Strong and Sustainable Resource Communities Bill 2016.

On 8 November 2016, the Strong and Sustainable Resource Communities Bill 2016 (SSRC Bill) was introduced into the Queensland State Parliament. The SSRC Bill seeks to limit the use of FIFO workers in the operation of large resources projects and ensure that local workers from nearby regional communities are employed in such projects.

The SSRC Bill will also amend the Anti-Discrimination Act 1991 (Qld) (AD Act) to prohibit discrimination against locals during the recruitment process for new workers, and to enable FIFO workers on existing projects to move into the local community if they so choose.

THE IMPETUS FOR CHANGE

The SSRC Bill is part of the government's broader Strong and Sustainable Resource Communities (SSRC) policy, which aims to:

  • support resources communities to attract and retain workers and their families;
  • improve participation of local governments in the social impact assessment process for each project;
  • improve access for local businesses to resources project supply chains;
  • help protect resources worker health and wellbeing;
  • provide flexibility to respond to peaks and troughs in the resources sector; and
  • minimise any consequential increases in costs to both proponents and governments in the assessment and operation of resources projects.1

A PROHIBITION ON A 100% FIFO WORKFORCE

The SSRC Bill prohibits future large scale mining, petroleum and other resources projects from having a workforce exclusively made up of FIFO workers, if such a project:

  • requires an environmental impact statement (EIS) under the State Development and Public Works Organisation Act 1971 (Qld) (SDPWO) or the Environment Protection Act 1994 (Qld) (EPA); and
  • has a 'nearby regional community'. (Affected Future Projects)

A 'nearby regional community' is a town which:

  • is published on the Department of State Development's website;
  • has a population of more than 200 people; and
  • any part of the population of the town is within 100 km of the entrance to the Affected Future Project that is closest to the town's boundary.

A FIFO worker is defined broadly to include any worker who travels to a project by aeroplane or another means from a place that is not a nearby regional community.2

The prohibition against a 100% FIFO workforce will be an enforceable condition for the project under the SDPWO.

Prohibition primarily applies during operational phase of project

The prohibition will principally apply during the operational phase of an Affected Future Project, being the period from the start to the end of production of coal, minerals or petroleum for the project.

However, the Coordinator-General may also nominate certain Affected Future Projects for which the prohibition will apply during the construction phase and the operational phase. The Coordinator-General will publish the names of these projects on its website.

According to the explanatory notes for the SSRC Bill, the Coordinator-General will not take this step unless he/she considers it necessary after a comprehensive EIS process has been completed.

The owner of an Affected Future Project must immediately give the Coordinator-General written notice of:

  • the start of the operational phase of the project (including the date it started); and
  • any change of ownership of the project (including the name of the new owner, the previous owner and the date the management changed).

Prohibition not retrospective

The prohibition on hiring exclusively FIFO workers is not retrospective and does not affect existing approvals for resources projects. The prohibition will only apply to future hiring practices.

THE OBLIGATION TO PREPARE A SOCIAL IMPACT ASSESSMENT

Under the SSRC Bill, future resources projects which are subject to an EIS process (regardless of whether or not they have a nearby regional community), will need to prepare a social impact assessment (SIA) as part of the EIS process.

The SIA must provide for:

  • community and stakeholder engagement;
  • workforce management;
  • housing and accommodation;
  • local business and industry procurement; and
  • health and community well-being.

The Coordinator-General may publish a guideline on the Department's website which states the details that must be included in a SIA.

The relevant local government must be consulted on the development of a SIA.

As part of the EIS for a project, the Coordinator-General may impose social impact conditions to manage the social impact of the project. The social impact conditions are enforceable conditions under the SDPWO and neither the Land Court nor the Planning and Environment Court have jurisdiction in relation to them.

ADVERTISING RESTRICTIONS

The SSRC Bill provides that advertising for recruitment for Affected Future Projects should not prohibit residents of nearby regional communities from applying for those positions. For example, stating in an advertisement that a position is for FIFO workers only is discriminatory, as local applicants would be precluded from applying.

AMENDMENTS TO THE ANTI-DISCRIMINATION ACT

Unlike the prohibition on employing 100% FIFO workers, the amendments to the AD Act apply to both future and some existing resources projects.

The SSRC Bill amends the AD Act to impose advertising requirements on large resources projects:

  • for which after 30 June 20093 there has been either a publicly notified Coordinator-General report evaluating the EIS under the SDPWO or an assessment report given to the proponent about the submitted EIS under the EPA; and
  • that have a nearby regional community. (Specified Projects)

Under the AD Act, the definition of a 'nearby regional community' is the same as that relating to the prohibition on employing 100% FIFO workers.

Under the amended AD Act, it will be an offence if the owner of a Specified Project advertises, or otherwise recruits, workers for the Specified Project and the local resident is not offered work or is disadvantaged in the recruitment process because they are a resident of a nearby regional community.

It will also be an offence under the amended AD Act if the owner of a Specified Project terminates a worker's employment because the worker is or becomes a resident of a nearby regional community and chooses to travel to the project rather than fly-in/fly-out.

If a principal contractor contravenes the restriction, both the owner of the Specified Project and the principal contractor are jointly and severally civilly liable for the contravention, and a proceeding may be taken against either or both of them.

The SSRC Bill amends the AD Act such that the burden of proof is reversed, so that if a complainant alleges that:

  • they were not offered work during recruitment for a Specified Project because the complainant was a resident of a nearby regional community; or
  • their employment was terminated because they were or became a resident of the nearby regional community and chose to travel rather than be a FIFO worker,

then it is presumed that that action was taken for that alleged reason unless the project owner proves otherwise.

Footnotes

1 Explanatory Notes, Strong and Sustainable Resource Communities Bill 2016 (Qld), pages 1-2.

2 According to the explanatory notes for the SSRC Bill, it is intended that all workers associated with the establishment of petroleum wells will be considered to be operational workers for all provisions of the SSRC Bill

3 According to the explanatory notes, the date of 30 June 2009 was chosen because it coincides with the time that contemporary social impact assessment practice commenced in Queensland.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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